1 United States District Court for the Eastern District Of

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

COMMON CAUSE NEW YORK, as an organization and on behalf of its members; BENJAMIN BUSCHER; SEAN HENNESSEY; REBECCA LIBED; ANDREW GERALD; SUSAN MILLER; and Case No. 1:16-cv-06122-NGG-VMS SARAH MILAM;

Plaintiffs,

v. FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY BOARD OF ELECTIONS IN THE CITY OF RELIEF NEW YORK; MARIA R. GUASTELLA, FREDERIC M. UMANE, JOSE MIGUEL ARAUJO, JOHN FLATEAU, LISA GREY MICHAEL MICHEL, MICHAEL A. RENDINO, ALAN SCHULKIN, SIMON SHAMOUN, ROSANNA VARGAS, in their official capacities as Commissioners of the Board of Elections in the City of New York; and MICHAEL J. RYAN, in his official capacity as the Executive Director of the Board of Elections in the City of New York;

Defendants.

Plaintiffs, on behalf of themselves and all others similarly situated, by and through

undersigned counsel, for their Complaint for Injunctive and Declaratory Relief, allege upon

knowledge as to their own conduct and upon information and belief as to the conduct of others,

as follows:

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INTRODUCTION

This action seeks to redress New York City’s removal of registered voters from

the voter registration rolls in violation of the National Voter Registration Act of 1993

(“NVRA”), 52 U.S.C. § 20501 et seq.

Sections 8(a)(3) of the NVRA provides that “the name of a registrant may not be

removed from the official list of eligible voters except (A) at the request of the registrant; (B) as

provided by State law, by reason of criminal conviction or mental incapacity; or (C) as provided

under paragraph (4).” 52 U.S.C. § 20507(a)(3). The further subsection referenced in Section

8(a)(3) refers to the removal of ineligible voters by reason of death or change in the residence of

the registrant in accord with the NVRA. Id. § 20507(a)(4).

Section 8(d) of the NVRA prohibits election officials from removing voters

eligible to vote in federal elections from the official voter registration list unless the registrant

“(A) confirms in writing that the registrant has changed residence to a place outside the

registrar’s jurisdiction in which the registrant is registered; or (B)(i) has failed to respond to a

notice described in paragraph (2); and (ii) has not voted or appeared to vote (and, if necessary,

correct the registrar's record of the registrant’s address) in an election during the period

beginning on the date of the notice and ending on the day after the date of the second general

election for Federal office that occurs after the date of the notice.” 52 U.S.C. §20507(d).

Plaintiffs include registered voters who were improperly removed from the voter

registration list and declared ineligible to vote in the election held on November 8, 2016, and an

organization that represents and assists voters who were improperly removed.

This case meets all of the requirements of Rule 65 of the Federal Rules of Civil

Procedure regarding injunctive relief.

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Defendants have prior notice of this suit due to Plaintiffs’ Original Complaint.

See Dkt. 1.

JURISDICTION AND VENUE

This action is brought pursuant to the NVRA’s private right of action, 52 U.S.C.

§ 20510, and 42 U.S.C. § 1983. This Court therefore has subject matter jurisdiction over

Plaintiffs’ claims because Plaintiffs’ claims arise under federal law. 28 U.S.C. § 1331.

This Court has personal jurisdiction over Defendants, all of whom are sued in

their official capacities and are either government entities, elected, or appointed officials in New

York City and New York State. All Defendants work or reside in the State of New York.

Venue in this District is proper under 28 U.S.C. § 1391(b)(2) because a

substantial part of the events or omissions giving rise to the claim occurred in this judicial district

and in this division.

PARTIES

A. Organizational Plaintiff

Plaintiff Common Cause, New York State (“Common Cause NY”) is the New

York State Chapter of Common Cause, a nonpartisan grassroots organization dedicated to

promoting an open, honest, and accountable government. Common Cause NY has

approximately 20,000 members and activists throughout New York City, out of a total of more

than 40,000 members and activists throughout New York State.

As part of its work to empower ordinary people and strengthen public

participation in institutions of government, Common Cause NY works to register voters,

encourage their participation, and protect their right to vote. Common Cause NY’s efforts

therefore mirror the NVRA’s stated goals of “increas[ing]” the number of eligible citizens who

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government to “enhance[] the participation of eligible citizens as voters in elections for Federal

office.” 52 U.S.C. § 20505.

Defendants’ actions have adversely impacted Common Cause NY and its

members. The complained-of actions have frustrated Common Cause NY’s purpose of ensuring

that citizens eligible to vote are afforded the right to do so. As a result of Defendants’ actions,

Common Cause NY has been forced to expend significant resources to address voters’ concerns

about the NYC BOE’s voter list maintenance procedures.

During and after the April 2016 primary election, for example, Common Cause

NY became aware that voters may have been wrongly purged from the voter rolls despite those

individuals having voted in previous elections and believing they were registered.

Following the primary election, Common Cause NY staff members immediately

assisted many voters who had allegedly been purged by clarifying their registration status and,

where necessary, helping ensure that they became registered for the November 2016 election.

Common Cause NY spent a significant amount of time and other resources following up on voter

complaints. Common Cause NY staff called voters, gathered details about their particular

circumstances, checked their registration status using the online New York State lookup tool or

directed voters to that website, and provided them with instructions on how to register again or

check the status of an affidavit ballot, if necessary.

Through their investigation, Common Cause NY spoke to numerous individuals

who were wrongfully purged earlier this year. One of these voters contacted the NYC BOE

about being restored to the registration list but was unsuccessful. He ultimately was unable to

vote in the November 2016 election, even though he had previously voted in the November 2012

election in New York City.

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Some of the voters who reported that they had been purged from the voter rolls

before the April primary election were members of Common Cause NY.

Common Cause NY catalogued its efforts in a detailed manner, collecting

information from various sources and repeatedly seeking to collect information through the NYC

BOE. Common Cause NY prepared a time-consuming Freedom of Information Law request and

conducted telephonic and in-person interviews with NYC BOE personnel. Common Cause NY

continues to expend efforts to address voters’ concerns with the NYC BOE’s maintenance of

voter records.

B. Individual Plaintiffs

The Individual Plaintiffs named in this complaint are Benjamin Buscher, Sean

Hennessey, Rebecca Libed, Andrew Gerald, Susan Miller, and Sarah Milam (collectively, the

“Individual Plaintiffs”).

Plaintiff Benjamin Buscher is a United States citizen and satisfies all of the

eligibility requirements for voting in New York State. He is a permanent resident of New York

City who resides in Brooklyn, New York.

Plaintiff Sean Hennessey is a United States citizen and satisfies all of the

eligibility requirements for voting in New York State. He is a permanent resident of New York

City who resides in Brooklyn, New York.

Plaintiff Rebecca Libed is a United States citizen and satisfies all of the eligibility

requirements for voting in New York State. She is a permanent resident of New York City who

resides in New York, New York.

Plaintiff Andrew Gerald is a United States citizen and satisfies all of the eligibility

requirements for voting in New York State. He is a permanent resident of New York City who

resides in Staten Island, New York. 5

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Plaintiff Susan Miller is a United States citizen and satisfies all of the eligibility

requirements for voting in New York State. She is a permanent resident of New York City who

resides in New York, New York.

Plaintiff Sarah Milam is a United States citizen and satisfies all of the eligibility

requirements for voting in New York State. She is a permanent resident of New York City who

resides in New York, New York.

C. Defendants

Defendant Board of Elections in the City of New York (hereinafter “NYC BOE”)

is responsible under New York State Election Law for, among other things: (1) voter registration,

outreach and processing; (2) maintaining and updating voter records; (3) recruiting, training and

assigning the various Election Day officers to conduct elections; (4) operating poll site locations;

(5) ensuring each voter their right to vote at the polls or by absentee ballot; and (6) canvassing

and certifying the vote.

The Individual Defendants named herein are named only in their official

capacities and are named as the City and local officials responsible for the implementation and

enforcement of the purge.

Defendant Maria R. Guastella (hereinafter “Defendant Guastella”) is the President

of the NYC BOE.

Defendant Frederic M. Umane (hereinafter “Secretary Umane”) is the Secretary

of the NYC BOE.

Defendant Jose Miguel Araujo (hereinafter “Defendant Araujo”) is an NYC BOE

Commissioner.

Defendant John Flateau (hereinafter “Defendant Flateau”) is an NYC BOE

Commissioner. 6

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Defendant Lisa Grey (hereinafter “Defendant Grey”) is an NYC BOE

Commissioner.

Defendant Michael Michel (hereinafter “Defendant Michel”) is an NYC BOE

Commissioner.

Defendant Michael A. Rendino (hereinafter “Defendant Rendino”) is an NYC

BOE Commissioner.

Defendant Alan Schulkin (hereinafter “Defendant Schulkin”) is an NYC BOE

Commissioner.

Defendant Simon Shamoun (hereinafter “Defendant Shamoun”) is an NYC BOE

Commissioner.

Defendant Rosanna Vargas (hereinafter “Defendant Vargas”) is an NYC BOE

Commissioner.

Defendant Michael J. Ryan (hereinafter “Defendant Ryan”) is Executive Director

of the NYC BOE.

FACTUAL ALLEGATIONS

A. The National Voter Registration Act

Congress enacted the NVRA in 1993 “(1) to establish procedures that will

increase the number of eligible citizens who register to vote in elections for Federal office; (2) to

make it possible for Federal, State, and local governments to implement this chapter in a manner

that enhances the participation of eligible citizens as voters in elections for Federal office; (3) to

protect the integrity of the electoral process; and (4) to ensure that accurate and current voter

registration rolls are maintained.” 52 U.S.C. § 20501.

Section 8 of the NVRA governs a State’s maintenance of the voter list in advance

of a federal election. Section 8(a) provides “that the name of a registrant may not be removed

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from the official list of eligible voters except” for certain limited instances, including “a change

in the residence of the registrant, in accordance with” Section 8(d). 52 U.S.C. §§ 20507(a)(3)-

(4).

Sections 8(a)(3) of the NVRA provides that “the name of a registrant may not be

removed from the official list of eligible voters except (A) at the request of the registrant, (B) as

provided by State law, by reason of criminal conviction or mental incapacity; or (C) as provided

under paragraph (4).” 52 U.S.C. § 20507(a)(3). The further subsection referenced in Section

8(a)(3) refers to the removal of ineligible voters by reason of death or change in the residence of

the registrant in accord with the NVRA. Id. § 20507(a)(4).

Section 8(d) of the NVRA provides:

A State shall not remove the name of a registrant from the official list of eligible voters in elections for Federal office on the ground that the registrant has changed residence unless the registrant—

(A) confirms in writing that the registrant has changed residence to a place outside the registrar's jurisdiction in which the registrant is registered; or

(B)(i) has failed to respond to a notice described in paragraph (2); and (ii) has not voted or appeared to vote (and, if necessary, correct the registrar's record of the registrant's address) in an election during the period beginning on the date of the notice and ending on the day after the date of the second general election for Federal office that occurs after the date of the notice.

Id. § 20507(d)(1). Section 8 further provides that if “the registrant . . . changed residence but

remained in the registrar’s jurisdiction, the registrant should return the card not later than the

time provided for mail registration . . . .” Id. § 20507(d)(2)(A). If the voter does not return the

card, “affirmation or confirmation of the registrant’s address may be required before the

registrant is permitted to vote in a Federal election during the period beginning on the date of the

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notice and ending on the day after the date of the second general election for Federal office that

occurs after the date of the notice . . . .” Id.

B. Defendants Have Improperly Removed Registered Voters From The Voter Registration List

As further detailed in the attached declarations by the Individual Plaintiffs,

Defendants removed Mr. Buscher, Mr. Hennessey, and other similarly situated individuals from

the voter registration rolls without complying with Section 8 of the NVRA.

Upon information and belief, Defendants have also removed Ms. Libed, Mr.

Gerald, Ms. Miller, Ms. Milam, and other similarly situated individuals from the voter

registration rolls without complying with Section 8 of the NVRA.

Defendants Informed Mr. Buscher That They Cancelled His Voter Registration Mr. Buscher is a permanent resident of New York State and New York City who

registered to vote in New York City in 2008.

Between 2008 and 2014, Mr. Buscher moved between various residences in New

York City. He voted in several elections during that time frame in New York City, including the

2008 and 2012 presidential election.

At the time of the November 2012 presidential election, Mr. Buscher resided at 15

Ann Street, New York, NY, 10038 and voted in the polling place associated with that address.

In February 2014, Mr. Buscher temporarily moved to Virginia to attend training

related to his job at the United States Department of State. In September of 2014, he temporarily

moved abroad to do work for the United States Department of State.

Though he temporarily moved, Mr. Buscher continued to maintain a residence in

New York City during that period.

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Since 2014, Mr. Buscher’s permanent address has been 1041 77th Street,

Brooklyn, New York, 11228.

Because Mr. Buscher knew he would not be in New York City on November 8,

2016, he applied for an absentee ballot on October 3, 2016. He applied for the absentee ballot

using his permanent address.

Around October 19, 2016, he became concerned that he had not received a ballot

or any notice regarding the status of his application. Accordingly, he made several phone calls to

the NYC BOE and branch offices to inquire as to the status of his ballot.

An employee of the NYC BOE informed Mr. Buscher that his registration was not

valid and the registration deadline for the November election had passed.

Through the assistance of the Lawyers’ Committee for Civil Rights Under Law,

Mr. Buscher learned that the NYC BOE received a change of address for Mr. Buscher from the

U.S. Postal Service to an address in Virginia in May 2014. The NYC BOE then sent a Notice of

Intent To Cancel his registration.

Mr. Buscher never received that Notice and so could not respond to it.

On August 5, 2014, the NYC BOE cancelled Mr. Buscher’s voter registration,

though two general elections for federal office had not occurred since it sent its notice to him.

In informing Mr. Buscher of these events, the general counsel of the NYC BOE,

Steven Richman, cited state law as Defendants’ basis for removing him from the voter rolls.

On November 3, 2016, following the initiation of this litigation, the NYC BOE

agreed to restore Mr. Buscher’s voter registration, and sent by federal express an absentee ballot

for Mr. Buscher to cast his vote in the November 8, 2016 General Election. Mr. Buscher

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subsequently completed the absentee ballot and sent it back to the NYC BOE by overnight mail

in time for arrival on or before November 8, 2016.

The NYC BOE has not yet informed Mr. Buscher of whether his vote has been

counted.

Defendants Informed Mr. Hennessey That They Cancelled His Voter Registration Mr. Hennessey is a permanent resident of New York State and New York City

who registered to vote in New York City in 2008.

Between 2008 and 2014, Mr. Hennessy moved between various residences in

New York City. He voted in several elections during that time frame in New York City,

including the 2008 and 2012 presidential election.

At the time of the November 2012 presidential election, Mr. Hennessey resided at

15 Ann Street, New York, NY, 10038, and voted at the voting precinct associated with that

address.

In May of 2014, Mr. Hennessey temporarily moved to Virginia to join Mr.

Buscher, who was attending a training program there. In September of 2014, Mr. Hennessey

temporarily moved abroad with Mr. Buscher for his job.

Though he temporarily moved, Mr. Hennessey continued to maintain a residence

in New York City during that period.

Since 2014, Mr. Hennessey’s permanent address has been 1041 77th Street,

Brooklyn, New York, 11228.

Because Mr. Hennessey knew he would not be in New York City on November 8,

2016, he applied for an absentee ballot on October 3, 2016. He applied for the absentee ballot

using his permanent address.

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Around October 19, 2016, he became concerned that he had not received a ballot

or any notice regarding the status of his application. Accordingly, he called the New York

County and Kings County election offices to inquire about the status of his ballot.

Employees at both offices informed Mr. Hennessey that his registration was not

valid, he could not vote in the November 2016 election, and the deadline for registering for the

election had passed.

Through the assistance of the Lawyers’ Committee for Civil Rights Under Law,

Mr. Hennessey learned that the NYC BOE received a change of address for Mr. Hennessey from

the U.S. Postal Service to an address in Virginia in May 2014. The NYC BOE then sent a Notice

of Intent To Cancel his registration.

Mr. Hennessey never received that Notice and so could not respond to it.

A NYC BOE employee informed Mr. Hennessey that the Notice was returned to

it as undeliverable.

On August 5, 2014, the NYC BOE cancelled Mr. Hennessey’s voter registration,

though two general elections for federal office had not passed.

In informing Mr. Hennessey of these events, the general counsel of the NYC

BOE, Steven Richman, cited state law as Defendants’ basis for removing him from the voter

rolls.

On November 3, 2016, following the initiation of this litigation, the NYC BOE

agreed to restore Mr. Hennessey’s voter registration, and sent by federal express an absentee

ballot for Mr. Hennessey to cast his vote in the November 8, 2016 General Election. Mr.

Hennessey subsequently completed the absentee ballot and sent it back by overnight mail to the

NYC BOE to arrive on or before November 8, 2016.

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The NYC BOE has not yet informed Mr. Hennessey of whether his vote has been

counted.

Defendants Removed Ms. Libed From the Voter Registration Rolls

Ms. Libed is a permanent resident of New York State and New York City who

registered to vote in New York City in 2000.

Ms. Libed’s current address is 788 Columbus Avenue, New York, New York

10025, and she has been registered to vote at that address for several years.

Prior to residing at 788 Columbus Avenue, Ms. Libed resided in Brooklyn, New

York.

Ms. Libed has voted in numerous elections while registered at 788 Columbus

Avenue, New York, New York 10025.

Ms. Libed voted in the April 2016 primary election by casting a regular ballot,

and was registered at 788 Columbus Avenue, New York, New York 10025 at the time.

Before the November 2016 General Election, Ms. Libed received a flier in the

mail that listed her polling place. This mailer listed Ms. Libed’s correct name, address, and

election district.

Ms. Libed attempted to vote in the November 8, 2016 General Election at the

same polling place where she voted in the April 2016 primary election.

The poll worker informed Ms. Libed that her name was not in the poll book, and

informed Ms. Libed that she could vote only by affidavit ballot.

Ms. Libed cast her vote in the November 8, 2016 General Election by affidavit

ballot.

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An employee of the NYC BOE was unable to find Ms. Libed’s registration under

her current Manhattan address, or prior Brooklyn address.

Ms. Libed never received Notice that her name was removed from the voter rolls.

Defendants Cancelled Mr. Gerald’s Voter Registration

Mr. Gerald is a permanent resident of New York State and New York City who

registered to vote in New York City in or around 1980.

Mr. Gerald currently resides at 103 Tompkins Circle, Staten Island, New York

10301, and has resided at this address since July 2013. Previously, Mr. Gerald resided at 18

Ward Ave., Staten Island, New York 10304. Both addresses are located within the same election

district.

Mr. Gerald has been registered to vote at 18 Ward Ave., Staten Island, New York

10304 since in or around 1980. Mr. Gerald has used this address to vote in elections between

1980 through 2008.

Mr. Gerald voted in the November 2008 General Election by regular ballot.

On or around July 29, 2013, Mr. Gerald sold his residence at 18 Ward Ave. and

did not update his voter registration information.

On or around July 29, 2013, Mr. Gerald requested that the United States Postal

Service forward his mail to his current residence, at 103 Tompkins Circle.

Mr. Gerald attempted to vote in the November 8, 2016 General Election. The poll

worker informed Mr. Gerald that his name was not listed in the poll book.

Mr. Gerald cast his vote for the November 8, 2016 General Election by affidavit

ballot.

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On November 10, 2016, Mr. Gerald called the Richmond County Board of

Elections to inquire about his voter registration status. A Board of Elections employee informed

Mr. Gerald that he was not registered to vote, and that he had been purged from the voter rolls in

2015. The employee also informed Mr. Gerald that he was likely purged because he had not

voted for some time, or had moved.

The Board of Elections cancelled Mr. Gerald’s voter registration in 2015.

Upon information and belief, Defendants improperly removed Mr. Gerald from

the voter rolls after his move in 2013, without waiting for him to fail to vote in two general

elections for federal office.

Mr. Gerald never received a Notice that his name was removed from the voter

rolls.

Mr. Gerald is worried that his ballot for the November 8, 2016 General Election

will not be counted.

On or around November 14, 2016, Mr. Gerald received a voter registration

application from the Board of Elections.

Defendants Cancelled Ms. Miller’s Voter Registration Ms. Miller is a permanent resident of New York State and New York City. She

has never moved out of New York City.

Ms. Miller currently resides at 1641 3rd Avenue, New York, New York 10128,

and has continuously resided there since in July 1980. Ms. Miller has been registered to vote at

this address since in or around July 1980.

Ms. Miller voted in the April 2016 Primary Election, without incident, as a voter

registered at 1641 3rd Avenue, New York, New York 10128.

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Ms. Miller attempted to vote in the November 8, 2016 General Election at the

same polling place where she voted in the April 2016 Primary Election. When Ms. Miller

arrived at the polling place, the poll worker informed her that her name was not in the poll book,

and that she could vote only by affidavit ballot.

Ms. Miller cast her vote for the November 8, 2016 General Election by affidavit

ballot.

Ms. Miller is worried that her vote for the November 8, 2016 General Election

will not be counted.

Ms. Miller’s voter registration has been removed from the voter rolls, though two

general elections for federal office have not occurred since she last voted in the April 2016

Primary Election.

Ms. Miller never received a Notice that her name was removed from the voter

rolls.

Defendants Cancelled Ms. Milam’s Voter Registration Ms. Milam is a permanent resident of New York State and New York City since

2013.

Ms. Milam currently resides at 209 East 88th Street, New York, New York

10128, and has resided there since approximately February 2015. Ms. Milam registered to vote

at this address in or around July or August 2015.

Ms. Milam voted by regular ballot in the April 2016 Primary Election without

incident, using her address at 209 East 88th Street, New York, New York 10128.

Ms. Milam attempted to vote in the November 8, 2016 General Election. When

Ms. Milam arrived at the polling place, the poll worker informed Ms. Milam that her name was

not in the poll book.

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Ms. Milam cast her vote for the November 8, 2016 General Election by affidavit

ballot at the polling place listed for her election district.

The New York State Voter Registration Lookup tool does not list Ms. Milam as a

registered voter.

Ms. Milam’s voter registration has been removed from the voter rolls, though two

general elections for federal office have not occurred since she last voted in the April 2016

Primary Election.

Ms. Milam never received a Notice that her name was removed from the voter

rolls.

Defendants Have Improperly Purged Similarly Situated Voters From the Voter Registration List Upon information and belief, Defendants have removed many other similarly

situated individuals from the voter registration list without complying with Section 8 of the

NVRA.

In April 2016, press reports revealed that the NYC BOE mistakenly removed

more than 120,000 voters from the voter rolls before the presidential primary.

Though the NYC BOE took steps to reinstate voters, the reinstatement only

affected voters who were removed from the lists on June 18, 2015 and July 5, 2015. See

http://www.wnyc.org/story/board-elections-returns-purged-brooklyn-voters-rolls/.

Such measures, therefore, did not reinstate voters like Mr. Buscher and Mr.

Hennessey, who were removed from the voter registration list on August 5, 2014.

And such measures did not prevent the removal of voters such as Ms. Milam, Ms.

Miller, and Ms. Libed, all of whom successfully voted in April 2016 but were forced to cast

affidavit ballots on November 8, 2016.

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CLAIMS

COUNT 1: Violations of Section 8 of the NVRA – Voter Registration List Maintenance Plaintiffs re-allege and incorporate all of the allegations contained in the previous

paragraphs of this complaint as though fully set forth herein.

Section 8(d) of the NVRA provides:

(A) confirms in writing that the registrant has changed residence to a place outside the registrar's jurisdiction in which the registrant is registered; or

Id. § 20507(d)(1). Section 8(a)(3) prohibits the removal of any registrant “from the official list of

eligible voters” in any election for federal office unless the registrar complies with the

requirements of Sections 8(a)(3)(A)-(C) and Section 8(d). Id. § 20507(a)(3).

Defendants removed Individual Plaintiffs, members of Common Cause NY, and

similarly situated voters from the voter registration rolls absent: (a) confirmation in writing that

Individual Plaintiffs and similarly situated voters changed residence to a place outside the

registrar’s jurisdiction; or (b) failure to respond to the requisite notice provision, and failure to

vote or appear to vote, or correct the registrar’s record of the registrant’s address, in an election

during the period beginning on the date of the notice and ending on the day after the date of the

second general election for Federal office that occurred after the date of the notice.

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Defendants removed Individual Plaintiffs, members of Common Cause NY , and

similarly situated voters from the voter registration rolls absent: (a) the request of the registrant;

(b) reason of criminal conviction or mental capacity; or (c) conducting a general program that

makes a reasonable effort to remove the names of ineligible voters from the official lists of

eligible voters by reason of (1) the death of the registrant, or (2) a change in the residence of the

registrant, in accordance with sections 8(b), 8(c), and 8(d).

The NYC BOE allegedly sent Mr. Buscher and Mr. Hennessey notices of intent to

cancel in May 2014, and cancelled their registrations in August 2014, a mere three months after

the NYC BOE issued the notices in violation of Section 8(d) of the NVRA. Two general

elections for federal office had not passed. Mr. Buscher and Mr. Hennessey therefore should

have remained on the voter registration rolls.

The NYC BOE improperly removed Ms. Libed, Ms. Miller, and Ms. Milam from

the voter registration rolls sometime between April 2016 and November 2016. None of these

individuals have changed their addresses, and their removal violates the NVRA.

The NYC BOE improperly removed Mr. Gerald from the voter registration rolls

in 2015, without providing notice of his removal and without waiting for two general elections

for federal office to pass.

The NYC BOE removed members of Common Cause NY and similarly situated

voters from voter registration rolls in violation of Sections 8(a)(3) and 8(d) of the NVRA.

Such voters were forced to vote by affidavit ballot on November 8, 2016 or were

unable to do so.

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COUNT 2: Violations of Elections Clause, U.S. Const. Art. I, § 4, cl. 1; 42 U.S.C. § 1983 – Federal Preemption Plaintiffs re-allege and incorporate all of the allegations contained in the previous

paragraphs of this complaint as though fully set forth herein.

The Elections Clause of the U.S. Constitution mandates that federal law preempts

state law in any area where Congress has taken action to “make or alter” the “Times, Places and

Manner of holding Elections” for federal office. U.S. Const. Art. I, § 4, cl. 1.

Upon information and belief, the NYC BOE has consistently and systematically

flouted the NVRA.

The NYC BOE removed Individual Plaintiffs, members of Common Cause NY,

and other similarly situated voters from the voter registration rolls under state election law in

violation of Section 8.

The NYC BOE’s purge of voter registrants conflicts with the text, purpose, and

intent of the NVRA by purging voter registrants absent written confirmation of change of

residence outside the registrar’s jurisdiction, or absent the registrant’s failure to respond to notice

of cancellation or failure to appear to vote, or correct the registrar’s record of the registrant’s

address, in an election during the period beginning on the date of the notice and ending on the

day after the date of the second general election for Federal office that occurred after the date of

the notice.

The NVRA preempts the NYC BOE’s implementation of any state law.

Defendants therefore should reinstate Plaintiffs and other similarly situated voters to the voter

registration rolls and count the affidavit ballots that they cast in the election held on November 8,

2016.

Case 1:16-cv-06122-NGG-VMS Document 13 Filed 12/10/16 Page 21 of 22 PageID #: 107

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment in their favor and against Defendants as follows: A. An Order declaring that the Plaintiffs have been unlawfully purged from the voter

registration rolls.

B. An Order Declaring Defendants’ purge of registered voters under New York State

Election Law Section 5-402 is preempted by the NVRA.

C. An Order Requiring Defendants to count the provisional ballots cast by the Individual

Plaintiffs, members of Common Cause NY, and those similarly situated to the Individual

Plaintiffs.

D. An Order Requiring Defendants to restore the registration of Individual Plaintiffs,

members of Common Cause NY, and any similarly-situated voters whose voter

registration Defendants have purged.

E. An award of attorneys’ fees and costs pursuant to 52 U.S.C. § 20510 and 42 U.S.C. §

1983.

F. Any other relief the Court deems just and proper.

Dated: December 9, 2016 Respectfully submitted,

By: _/s/ May K. Chiang______Neil A. Steiner Mauricio A. España May K. Chiang Jamie Hacker Negin Hadaghian

DECHERT LLP 1095 Avenue of the Americas New York, NY 10036 (212) 698-3822 [email protected]

Case 1:16-cv-06122-NGG-VMS Document 13 Filed 12/10/16 Page 22 of 22 PageID #: 108

Juan Cartagena Ezra D. Rosenberg Jose Perez John Powers Joanna E. Cuevas Ingram LAWYERS’ COMMITTEE FOR CIVIL LatinoJustice PRLDEF RIGHTS UNDER LAW 99 Hudson Street, 14th Floor 1401 New York Avenue NW, Suite 400 New York, NY 10013 Washington, DC 20005 (212) 219-3360 (202) 662-8389 [email protected] [email protected] [email protected] (Pro hac vice admission pending)